U.S. Constitution: Foundation & Evolution (Including the Biographies of the Founding Fathers). Madison James
first branch out of nominations by the State Legislatures, Mass. ay. Connecticut no. N. Y. no. N. Jersey, no. Pennsylvania no. Del. no. Virginia ay. N. C. no. S. C. ay. Georgia no.
So the clause was disagreed to & a chasm left in this part of the plan.
The sixth Resolution stating the cases in which the national Legislature ought to legislate was next taken into discussion: On the question whether each branch should originate laws, there was an unanimous affirmative without debate. On the question for transferring all the Legislative power of the existing Congress to this Assembly, there was also a silent affirmative nem. con.
On the proposition for giving "Legislative power in all cases to which the State Legislatures were individually incompetent,"
Mr. Pinkney & Mr. Rutledge9 objected to the vagueness of the term incompetent, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.10
Mr. Butler repeated his fears that we were running into an extreme in taking away the powers of the States, and called on Mr. Randolph for the extent of his meaning.
Mr. Randolph disclaimed any intention to give indefinite powers to the national Legislature, declaring that he was entirely opposed to such an inroad on the State jurisdictions, and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.
Mr. Madison said that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be he could not yet tell. But he should shrink from nothing which should be found essential to such a form of Government as would provide for the safety, liberty and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.
On the question for giving powers, in cases to which the States are not competent — Massachusetts ay. Connecticut divd. (Sherman no. Elseworth ay.) N. Y. ay. N. J. ay. Pennsylvania ay. Del. ay.Virginia ay. N. C. ay. S. Carolina ay. Georgia ay.
The other clauses giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of Doctor Franklin) were agreed to without debate or dissent.
The last clause of Resolution 6, authorizing an exertion of the force of the whole aagainst a delinquent State came next into consideration.
Mr. Madison, observed that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually. — A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. This motion was agreed to, nem. con.
The Committee then rose & the House
Adjourned.11
1 "This day the state of New Jersey was represented, so that there were now ten states in Convention." — Yates, Secret Proceedings, etc., 99. But in the Journal of the Federal Convention (1819), as in Madison's account, New Jersey is entered as present May 25th. On May 30 two votes are recorded by Madison and in the Journal without New Jersey. It is probable that an error was made in the Journal and that Madison followed it.
Rufus King kept a few notes of the proceedings of the convention from May 31st to August 8th. They are meagre, but corroborate Madison's report. See King's Life and Correspondence of Rufus King, i., 587.
Pierce also kept a few rough notes of the proceedings which were printed in the Savannah Georgian, April 19, 21, 22, 23, 24, 25, 26, and 28, 1828, and reprinted in The American Historical Review, iii., 317 et seq. They throw little additional light on the debates, but wherever they do are quoted here, as are King's.
3 "Mr. Strong would agree to the principle, provided it would undergo a certain modification, but pointed out nothing." — Pierce's Notes, Am. Hist. Rev., iii., 318.
4 "Mr. King observed that the Question called for was premature, and out of order, — that unless we go on regularly from one principle to the other we shall draw out our proceedings to an endless length." — Pierce's Notes, Am. Hist. Rev., iii., 318.
5 "Butler said that until the number of the Senate could be known it would be impossible for him to give a vote on it." — Pierce's Notes, Am. Hist. Rev., iii., 318.
6 "Mr. Butler moved to have the proposition relating to the first branch postponed, in order to take up another, — which was that the second branch of the Legislature consist of blank.
According to Pierce, Mason spoke after Sherman, and Pinckney's motion is given more fully by Pierce than by Madison.
"Mr. Mason was of opinion that it would be highly improper to draw the Senate out of the first branch; that it would occasion vacancies which would cost much time, trouble, and expense to have filled up, — besides which it would make the members too dependent on the first branch.
"Mr. Pinckney said he meant to propose to divide the Continent into four Divisions, out of which a certain number of persons should be nominated, and out of that nomination to appoint a senate." — Pierce's Notes, Amer. Hist. Rev., iii., 319.
8 This question is omitted in the printed Journal, & the votes applied to the succeeding one, instead of the votes as here stated. — Madison's Note.
9 "Mr. Rutledge is one of those characters who was highly mounted at the commencement of the late revolution; — his reputation in the first Congress gave him a distinguished rank among the American Worthies. He was bred to the Law, and now acts as one of the Chancellors of South Carolina. This Gentleman is much famed in his own State as an Orator, but in my opinion he is too rapid in his public speaking to be denominated an agreeable Orator. He is undobotedly a man of abilities, and a Gentleman of distinction and fortune. Mr. Rutledge was once Governor of South Carolina. He is about 48 years of age." — Pierce's Notes, Amer. Hist. Rev., iii., 333.
According to Pierce: "Mr. Sherman was of opinion that it would be too indefinitely expressed, — and yet it would be hard to define all the powers by detail. It appeared to him that it would be improper for the national Legislature to negative all the Laws that were connected